Asylum seeker swap deal challenged

The government is set to sign the asylum seeker swap plan with Malaysia within days. The deal will be effective from when it's signed, leaving hundreds of asylum seekers in limbo.

Transcript

LEIGH SALES, PRESENTER: As we reported last week, the Gillard Government will sign a deal cementing an asylum seeker swap with Malaysia in days.

The plan allows 800 people to be sent from Australia to Malaysia in exchange for resettling 4,000 certified refugees here over four years.

But the deal takes effect from when it's signed, so that means the 407 asylum seekers who've arrived here since May, when it was first flagged, are in legal limbo.

A case before the High Court tomorrow could change that, as political editor Chris Uhlmann reports.

CHRIS UHLMANN, REPORTER: In March, Christmas Island Detention Centre was rocked by a week of riots and protests spread to other centres like Villawood in Sydney. Then there were 6,600 detainees Australia-wide and processing times had blown out from a hundred to 165 days. Their frustration was growing and the Government's border protection regime was buckling.

(May): Have you lost control of the Christmas Island Detention Centre?

CHRIS BOWEN, IMMIGRATION MINISTER: Well clearly we have a difficult situation with ongoing tension.

CHRIS UHLMANN: In response the Government began moving detainees from Christmas Island to the mainland and searching for a third country to take some of the load and to act as a deterrent to any more boat arrivals. It began negotiating with Papua New Guinea and Malaysia.

JULIA GILLARD, PRIME MINISTER (May 7): Under this arrangement, if someone seeks to come to Australia, then they are at risk of going to Malaysia and going to the back of the queue.

CHRIS UHLMANN: 7.30 understands the so-called Malaysian Solution was settled last week and the deal is expected to be signed in Kuala Lumpur within days. It will see 800 Australian-based asylum seekers sent to about Malaysia and 4,000 already-processed refugees resettled here over four years.

The people swap deal will run from when it's signed. So the 407 asylum seekers who have arrived since May are stuck on Christmas Island without being processed while the Government searches for a country willing to take them.

DAVID MANNE, REFUGEE LEGAL CENTRE: Look, it's quite clear that the Government has no concrete plan to expel the hundreds of people who arrived after the announcement of the Malaysian Solution. That includes a mother and a child who have a husband-father here, it includes a pregnant woman who has family here and many children. The fact is that the Government cannot tell any of those people when, where or how they are going to be expelled from Australia. It's also clear that the Government has not so far struck any arrangement or agreement with any other country for their expulsion. So they remain in legal limbo and in a situation of arbitrary detention, which is quite potentially also unlawful and certainly is likely to cause them lasting damage.

CHRIS UHLMANN: Tomorrow refugee lawyer David Manne will be in the High Court for a hearing in a case he's running against the Commonwealth. His clients are a mother and child detained on Christmas Island. Their husband and father arrived earlier and has been determined as refugee. But his family is in a legal nether world.

DAVID MANNE: The mother and child will be asking the court for a timetable to have their case heard by the full bench of the High Court as soon as possible so this matter can be resolved.

CHRIS UHLMANN: David Manne has beaten the Commonwealth in the High Court before, forcing it to allow asylum seekers access to the courts. If he wins again, it's likely the precedent will resonate beyond a single family. There are 5,650 people in detention, processing delays have blown out to over 200 days and the riots have returned to Christmas Island. Last night, police used tear gas and bean bag bullets to subdue a group of 50 protestors.

SANDI LOGAN, IMMIGRATION DEPARTMENT: All of the group of 50 around at the height of it, 50 detainees who were protesting, have now all returned to compounds. There is one detainee who remains on the roof at North West Point. Negotiators have worked through the night with three who were there. We're now down to one and we're reasonably confident that he will be coming down through the day as well.

CHRIS UHLMANN: It's understand the rioters were mostly Iranians whose asylum claims have been or are likely to be rejected, not the 407 in legal limbo.

SANDI LOGAN: Quite a number of detainees are now at the end of the road. They have not succeeded in engaging Australia's protection obligations. They are in fact now facing removal and return.